E 449 
.R65 



LIBRARY OF CONGRESS 



DQDDlVMflTO? 



-^^^ 






-^^^^ *i 



': .♦^^ 









^° ^o'^-h. 



•5^^^ 

5.^--. 









0-- ..0 






>. •., 



.^^ /*elfe,'. ^^ .^ »>V^-. \/ „.^', ^^^^^<^ /. 



0'' 

5°^ 

















%'^f>yj' X'^^^\^ \'^f>:^\cf V^^^^^ ' 






^.^^ .' 










A < 












* -4.* ^ 






A < 







'^K' 
/"-< 



.0 ^* 


















./ » Jfe*-^ %,^* :^-. \/ :^^ ^^-^^ .'. 









^•* .^*'' "o.. *'^^"'" aO'^ *^. '*:^'* .-**' 












■«v**^'** ^° 






X'-^^*>" W'-'^^'J' V^^> W'-'^^'J" 



'• \.^* .*^': \s^''' '^^^'' ""- -" '' 









\.^^ 

: 4.^'"^ 



%^'.r.^.'' 0*" V-^^^-^ ^"•'r:'!**^" %.*^5«?f:*>* 
^' \ oo^.i^sjL'^ ,**\..i:^.\ co*.:^s:ji-% /\!i;^ 









"o,*-Tr,^*\o'' 



^^-^^^ s 









•*..i:if* 



V «** ^ 



^' ^^'-^^^ 



or 'iu »7 












r; .♦^•v. 



5? "^ 






^°-^*. 



^^i' •> 



V .^''%. 









*,*>- -^.--.m<*\.^^X -MK-' ^^'% -.^ 






''f'^** J^^ \^'^^^\<v'^ '^<J*'»-'*V'^^ \.*'^^'\'^'^ ^</''f' 

^v* v"*'oni**v^ \.**^!?v* \/''i^**j^^'' \'^. 

^ -.^*.*;^'.\ .^°^^i>- y*:^'\ ^° -^k^- 



■ ; "^ K .J 



K ^^ 










UPON THE 



CONSTITUTIONAL RIGHTS 



SLAVE PROPERTY. 

Republished from the " Southern Literary Messenger," for Feb. 1840. 

RICHMOND: 

PRINTED BY THOMAS W. WHITE. 
1840. 



Slavery and the Constitution. 



^-SLAVERY AND THE CONSTITUTION. 

■v., 

'^ [The writer of the following article had in view several 
C* objects. He wished to be instrumental in disseminating 
^ "information to the North as to the rights of the Soxith, and 
in making known at the South the extent to which the ju- 
> dicial tribunals of the North have protected Southern rights ; 
^ while, at the same time, it was a part of his design to pre- 
sent a legal view of the constitutional question, which has 
lately been discussed between the Executive of Virginia, 
and the Executive of New York. He thought it desirable, 
therefore, that the matter should be published to the North 
as well as to the South ; and that the first publication, in 
either section of country', should be in a journal not of a po- 
litical character. In accordance with this view, the manu- 
script, at the same time that it was furnished to the Mes- 
senger, was transmitted to the Editors of the American Ju- 
rist, a valuable legal periodical published at Boston. The 
manuscript as it came to us, was arranged for two numbers, 
and it was in the last of these, that the constitaitional ques- 
tion above adverted to, was exanvined. A deep sense of the 
importance of that question — a knowledge of the peculiar 
interest with which it is regarded at the present moment, 
and a conviction that whatever will throw light upon it is 
now particularly acceptable — have induced us, .with the 
author's assent, to unite the two numbers in one, and give 
the whole to our readers together. 

The article is written in a calm and candid manner, and re- 
flects much credit upon the industry and judgment of its au- 
thor. He has rendered an important service to his own State, 
and presented, by an array of facts, a powerful appe.il to the 
State with which she is in controversy. We think that our 
readers will be much interested and instructed in its peru- 
sal. We are not aware that we are taking an improper 
liberty, when we mention that its author is Conway Rocix- 
SON, Esq., of this city. Let it be read with calmness, im- 
partiality and reflection.] — Ed. Messenger. 

BIGHTS OF THE SL.IVE-HOLDING STATES, AND OF THE 
OWNERS OF SLAVE PROPERTY, t-'NDEE THE CONSTITD- 
TION OF THE U.VITED STATES. 

The great importance of this subject, and the in- 
creased and increasing interest with which it is 
viewed in every part of our country, justify the be- 
lief that an examination of the provisions of the 
constitution on which tlie owners of slave property 
were induced to rely when the federal compact 
was formed, a sketch of the laws which Congress 
has passed to carry out those constitutional provi- 
sions, and a review of the judicial decisions which 
have been made under the constitution and laws, 
may prove acceptable to the readers of this journal, 
and not be without utility at the present time. As 
matter which is introductory and somewhat expla- 
natory, we sliall commence by giving an outline of 
the laws as to slavery, which at the time the federal 
constitution was adopted and subsequently thereto, 
have prevailed in the tliree most important northern 
states. We mean New York, Pcnnsi/hania, and 
Massac/iusells. 

1. Laws as to Slavery in the Northern Stales. — 
The law, as to slavery in Massachusetts, is stated 
by Chief Justice Parsons in a case which came 
before the supreme court of that state.* 

* WiruMster, &c. v. mtfidd, &.c. : i Mass. Rep. 123. 



" Slavery," he says, " was introduced into this 
country soon after its first settlement, and was tole- 
rated until the ratification of the present constitu- 
tion. The slave was the property of his master, 
subject to his orders and to reasonable correction 
for misbehavior — was transferable like a chattel 
by gift or sale, and was assets in the hands of his 
executor or administrator. If the master was guilty 
of a cruel or unreasonable castigation of his slave, 
he was liable to be punished for the breach of the 
peace ; and, I believe, the slave was allowed to de- 
mand sureties of the peace against a violent and 
barbarous master, which generally caused a sale to 
another master. And the issue of the female slave, 
according to the maxim of the civil lav/, was the 
property of her master. Under these regulations, 
the treatment of slaves was in general mUd and hu- 
mane, and they suffered hardships not greater than 
hired servants. Slaves were sometimes permitted 
to enjoy some privileges as a peculium, with the 
profits of which they were enabled to purchase their 
manumission, and liberty was frequently granted to 
a faithful slave, by the bounty of the master, some- 
times in his life, but more commonly by his last will." 

" In the first action, involving the riglit of the 
master, which came before the supreme Judicial 
court after the establishment of the constitution, the 
judges declared that by virtue of the first article of 
the declaration of rights, slavery in this state 
was no more. And afterwards in an action by the 
inhabitants of Littleton, brought to recover the ex- 
penses of maintaining a negro against Tattle, his 
former reputed master, tried in Middlesex October 
term, 1796, the Chief Justice, in charging the jury, 
stated as the unanimous opinion of the court, that 
a negro born in the state before the present consti- 
tution, was born free, although born of a female 
slave." 

The opinion so given by the court in 1796, is 
stated by Chief Justice Parsons to have been op- 
posed to the practice and usage at that day, but it 
has constituted a rule of decision ever since. The 
issue of slaves, although born before the adoption 
of the constitution, are held to have been born free.* 

In New York, it was declared by one of the co- 
lonial statutes, that all due encouragement ought to 
be given to the direct importation of slaves. After 
the revolution, the government of that state deter- 
mined upon a diflferent policy. 

The act of February •2i2d, 1788, declared, " that 
if any person shall seU as a slave within this state, 
any negro or other person, who has beefl imported 
or brought into this state after the 1st of June, 
1785, such seller, his factor or agent, shall be 
guilty of a public offence and shall forfeit ^100, and 
the person so imported and sold shall be free." 

The act was hostUe to the importation and to the 
exportation of slaves, as an article of trade, not to 

* Lanesborough v. Westfield: 16 Mass. Rep. 74. 



Slavery and the Constitution. 



the existence of slavery itself; for it took care to 
re-enact and establish the maxim of the civil law, 
that the children of every female slave should fol- 
low the state and condition of the mother.* 

It was not considered to prevent a sheriff from 
taking nr selling a slave under an execution against 
the owner; and the slave was subject to the con- 
trol and disposition of the executor or administrator 
of a deceased owner, in the same manner as other 
personal property. The prohiliition was against a 
voluntary sale by the master of a slave, imported or 
brought into the state. f 

The statute imposed a penalty for harboring 
slaves or servants ; and it was held moreover that 
this was cumulative, and did not destroy the com- 
mon law remedy which a master had by an action, 
to recover damages for seducing and harboring his 
servant. J 

The master might confine his slave in jail, and 
this it appears was done in a case decided as late 
as 1823.6 

By the act for the gradual abolition of slavery, 
all children born of slaves, subsequent to the 4th of 
July, 1799, were declared to be free, but to continue 
servants to the owners of their mothers — males till 
the age of twenty-eight, and females tiU the age of 
twenty-five. The act of 1817 made it the duty of 
the masters of such servants, to give them certain 
education before arriving at the age of eighteeen, 
and, in default of so doing, declared the servants 
free at the age of eighteen ; and, in oi-der that it 
might be known when the age was attained which 
discharged them from further servitude, the person 
entitled to such service was required within one 
year after the passage 'of the act, or after the birth 
of the child of a slave, to make an affidavit stating 
the age of such servant ; and in default of making 
and filing such affidavit, within the time specified, 
the act declared the person so held to service free 
at eighteen.]! 

Even after this act, all then alive, who were born 
in the state prior to the 4th of July, 1799, of fe 



the gradual abolition of slavery, passed on the 1st 
of March, 1780. By this act every person, who at 
the time of passing it was a slave, was to remain a 
slave, unless his owner omitted to register him on 
or before the 1st day of November ensuing. Chil- 
dren born after the passing of the act, were born free, 
subject however to a temporary servitude till the age 
of twenty-eight : and the issue of such children 
could not be held to any servitude.* 

Very soon after this act was passed, a number of 
persons formed a society in Philadelphia, for the 
purpose of relieving those who wore held in illegal 
slavery. A boy, born in Maryland of an unmaiTied 
mulatto woman, who was a slave, attended his mas- 
ter to Philadelphia in the autumn of 1784, and his 
complexion being light, the attention of this society 
was excited, and a writ of habeas corpus was taken 
out at their instance for his relief. The case was 
afterwards thrown into the form of an action de 
homine rcplegiando. At the trial, the plaintifThim- 
self was shown to the jury, that they might, from 
his appearance, draw a conclusion that he was, at 
least on one side, the issue of white parents. On 
the part of the master, it was proved that by the 
laws of Maryland, the boy was a slave in that state ; 
and it was contended that the lex loci must deter- 
mine the right. The other side allowed the force 
of the lex loci in regulating contracts, but insisted 
that it could never be extended to injure a third per- 
son who was not a party to the contract ; and on 
that side the following propositions were advanced : 
1st. That however the case might be according to 
the civil law, by the common law, the issue fol- 
lowed the condition of the father, 2dly. That a 
bastard being nulliusjitins was free ; and 3dly. That 
things, not persons, are the objects of property. 
McKean, Chief Justice, delivered his sentiments in 
an elaborate charge to the jury — in the course of 
which, he said : " Slavery is of very ancient origin. 
Bv the sacred books of Leviticus and Deuteronomy, 
it appears to have existed in the first ages of the 
world ; and we know it was established among the 



males who Avere slaves at the time of the birth, con- Greeks, the Romans, and the Germans. In Eng- 



tinued slaves; except such as had been emancipated 
by their owners. 

At last, by an act of the 31st of March, 1817, 
provision was made for the annihilation of slavery 
in the state of New York, in about ten years there- 
after, by a section which declared that every negro, 
mulatto or mustee, within the state, born before the 
4th of July, 1799, should, from and after the 1th 
day of July, 1827, be free.^f 

The act of the legislature of Pennsylvania, for 

* See Kent J. in Sat)ir v. Hitchcock : 2 Johns, cas. 85 ; 
Conckltn v. Havens : 12 Johns. 314. 

t Sable V. Hitchcock: 2 Johns, cas. 79 ; Cmsar v. P:ahoihj : 
11 Johns, 68; Gilston v. Russell, &c. : II Johns. 415 

X Sciilmorev. Smith : 13 Johns. 322. 

^ Smith V Hoff: 1 Cow. 127. 

II Griffin v Potto- : 14 Wend. 209, 

ir 2 Kent's Com. 257. 



land, there was formerly a species of slavery, 
distinct from that which was termed villenage. 
Swinb. p. 84, 6 edi. is the only autliorily I remem- 
ber on this point, though I have before had occa- 
sion to look into it with attention. But from this 
distinction has arisen the rule that the issue follows 
the condition of the father — and its consequence 
that the bastard is always free ; because in contem- 
plation of law, his father is altogether unknown, 
and that therefore his slavery shall not be presumed, 
which must be confined implicitly to the case of 
rillems. It would, perhaps, be difficult to account 
for this singular deviation in the law of England, 
from the law of every other country upon the same 
subject.- But it is enough for the present occasion 
to know, that as villenage never existed in America, 
* Mtlhr V IhrHlinf: 14 Spfg. and Ra\vlf;442 



Slavery and the Constitution. 



5 



no part of the doctrine founded upon that condition 
can be applicable here. The contrary practice has, 
indeed, been universal in America ; and our prac- 
tice is so strongly authorized by the civil law, from 
which this sort of domestic slavery is derived, and 
is in itself so consistent with the precepts of na- 
ture, that we must now consider it as the law of the 
land." 

The jury were left to determine from the evi- 
dence, whether the plaintiff's mother was a sfave 
at the time of his birth according to the laws of the 
state where he was born ; and their verdict upon 
the evidence was for the defendant.* 

This trial took place in 1786, only the year be- 
fore that in which the convention was held that 
formed the federal con.stitution. 

At the time of the convention, the experience of 
the states south of Pennsylvania, was such as to 
produce distrust of their northern brethren as to 
the safety of their property in slaves. 

" It was no easy task to reconcile the local in- 
terests and discordant prepossessions of the differ- 
ent sections of the United States ; but the business 
was accomplished by acts of concession and mu- 
tual condescension."! 

2. Provisions made by the Federal Convention., 
for the security of the South. — The original ar- 
ticles of confederation contained a clause in the 
following words : 

" If any person guilty of, or charged with treason, 
felony, or other high misdemeanor in any state, 
shall flee from justice, and be found in any of the 
United States, he shall, upon demand of the govern- 
ment or executive power of the state from which 
he fled, be delivered up and removed to the state 
having jurisdiction of his offence." 

In the convention of 1787, the conmiittee to 
whom were referred the proceedings of thfe conven- 
tion, for the purpose of reporting a constitution, re- 
ported a draft, in wliich the fifteenth article was as 
follows : 

"Any person charged with treason, felony or high 
misdemeanor in any state, who shall flee from jus- 
tice and shall be found in any other state, shall, on 
demand of the executive power of the state from 
which he fled, be delivered up and removed to the 
state having jurisdiction of the offence." 

A\ hen the draft was before the convention, on 
the 28th of August, 1787, it was moved to strike 
out the words " high misdemeanor," and insert the 
words " other crime ;" which motion passed in the 
affirmative. 

On the next day, a motion was made to agree to 
the following proposition, to be inserted after the 
fifteenth article : 

" If any person bound to service or labor, in any 
of the United States, shall escape into another state, 

* Pirate alias Bdl, v. Dalby : 1 Dall. 187. 

+ Ytates J. in Com v. Hollaway : 2 Snrg. and Rawlt, 3CS 



he or she shall not be discharged from such service 
or labor, in consequence of any regulation subsisting 
in the state to which they escape, but shall be de- 
livered up to the person justly claiming their ser- 
vice or labor." 

This proposition was unanimonsly adopted. 

Afterwards, a committee was appointed to revise 
the style of, and arrange the articles agreed to by 
the house. The second section of the fourth arti- 
cle, reported by the committee of revision, contained 
the following clauses : 

"A person charged in any state with treason? 
felony, or other crime, who shall flee from justice 
and be found in another state, shall, on demand of 
the executive authority of the state from which he 
fled, be delivered up, and removed to the state ha- 
ving jurisdiction of the crime." 

" No person legally held to service or labor, in 
one state, escaping into another, shall, in conse- 
quence of regulations subsisting therein, be dis- 
charged from such service or labor, but shall be 
delivered up on claim of the party to whom such 
service or labor may be due." 

The federal constitution, as adopted, contains the 
clauses thus reported with some amendment. In 
the first clause the words " to be removed," are in 
place of the words " and removed." In the second 
clause, the changes, of language are more striking. 
The word " legally" is struck out, and after the 
word " state," the words " under the laws thereof," 
inserted ; and the expression, " regulations subsist- 
ing therein," is substituted by the words " any law 
or regulations therein." 

3. Dlbates in the State Conventions. — When 
the Virginia convention were considering whether 
they would assent to, and ratify the federal con- 
stitution, Mr. Madison, amongst other things, 
said — " it is worthy of our consideration that those 
who prepared the paper on the table, found diffi- 
culties not to be described in its formation — mutual 
deference and concession were absolutely neces- 
sary. Had they been inflexibly tenacious of their 
individual opinions, they would never have concur- 
red. Under what circumstances was it formed! 
When no party was formed, or particular prepos- 
session made, and men's minds were calm and dis- 
passionate. Yet, under these circumstances, it w#s 
difficult, extremely difficult, to agree to any gene- 
ral systen^."* 

The members of the Virginia convention were 
nearly equally divided upon the question of ratifica- 
tion, and the opposition embraced a very conside- 
rable proportion of the talent of the state. Amongst 
tli.e opponents, there were none more decided or 
mor.e zealous, than Geo. Mason and Pal rid Henry. 

When the section, declaring that the importation 
of such persons as any of the states might think 
proper to admit, should not be prohibited by Con- 

* Ellhll's Delulrs: vol, 2, p. 450. 



Slavery and the Constitution. 



gress prior to the year 1808, was under considera- 
tion, Mr. George Mason said — "As much as I va- 
lue an union of all the states, I would not admit the 
southern states* into the Union, unless \\\ey agreed 
to the discontinuance of this disgraceful trade ; be- 
cause it would bring weakness and not strength to 
the Union. And though this infamous traiiic be 
continued, we have no security for the property of 
that kind which we have already. There is no 
clause in this constitution to secure it : for they 
may lay such tax as wiU amount to manumission." 

Mr. Madison answered these objections as fol- 
lows: "I should conceive this clause to be impoli- 
tic, if it were one of those things which could be 
excluded without encountering greater evils. The 
southern states would not have entered into the 
union of America, without the temporary permis- 
sion of that trade. And if they were excluded 
from the Union, the consequences might be dread- 
ful to them and to us. We are not in a worse sit- 
uation than before. That traffic is prohibited by 
our laws, and ti-e may continue the prohibition. 
The Union in general is not in a worse situation. 
Under the articles of the confederation it might be 
continued forever, but by this clause an end may 
be put to it after twenty years. There is therefore 
an amelioration of our circumstances. A tax may 
be laid in the meantime, but it is limited, otherwise 
Congress might lay such a tax as would amount to 
a prohibition. From the mode of representation 
ind taxation. Congress cannot lay such a tax on 
slaves as will amount to manumission. Another 
clause secures us that property which we now pos- 
sess. At present, if any slave elopes to any of 
those states where slaves are free, he becomes 
emancipated by their laws. For the laws of the 
states are uncharitable to one another in this re- 
spect. But by this constitution, ' no person held 
to service or labor in one state under the laws 
thereof, escaping into another, shall, in consequence 
of any law or regulation therein, be discharged from 
such service or labor, but shall be delivered up on 
claim of the party to whom such service or labor 
may be due.' This clause was expressly inserted 
to enable owners of slaves to reclaim them. This 
is a better security than any that now e.xists. No 
power is given to the General Government to inter- 
jtose, with respect to the property in slaves now 
held by the states. The taxation of this state being 
equal only to its representation, such a tax cannot 
be laid as he supposes, "f 

Patrick Henry endeavored to support the objec- 
tion, that if the constitution were adopted. Congress 
might abolish slavery. "As much," said he, " as 
I deplore slavery, I see that prudence forbids its 
abolition. I deny that the peneral Government 
ought to set them free ; because a decided majority 

* By southern states, was meajit South Carolina ^and 
Gcnrsia. 
t Elliott's Debates: vol. 2, p. 335-6. 



of the states have not the ties of sympathy and fel- 
low-feeling for those whose' interest would be af- 
fected by the emancipation. The majority of Con- 
gress is to the north, and the slaves are to the 
south. In this situation, I see a great deal of the 
property of the people of Virginia in jeopardy, and 
their peace and tranquillity gone away. I repeat it 
agaiii, that it would rejoice my soul that everj^ one 
of my fellow-beings was emancipated. As we 
ought with gratitude to admire that decree of 
Heaven, which has numbered us among the free, 
we ought to lament and deplore the necessity of 
holding our fellow-men in bondage. But is it 
practicable by any human means, to liberate them 
without producing tlie most dreadful and ruinous 
consequences ? We ought to possess them in the 
manner we have inherited them from our ances- 
tors, as their manumission is incompatible with the 
felicity of our country. But we ought to soften as 
much as possible the rigor of their unhappy fate."* 

Mr. Henry was answered by Gov. Randolph : 
" I ask," said he, " and I will ask again and again, 
until I be answered (not \^ declamation), where is 
the part that has a tendency to the abolition of sla- 
very ? Is it the clause which says that ' the migra- 
tion or importation of such persons, as any of the 
states now existing shall think proper to admit, 
shall not be prohibited by Congress prior to the 
year 1808?' This is an exception from the power 
of regulating commerce, and the restriction is only 
to continue till 1808. Then Congress can, by the 
exercise of that power, prevent future importa- 
tions ; but does it affect the existing state of sla- 
very ] Were it right here to mention what passed 
in convention on the occasion, I might tell you that 
the southern states, even South Carolina herself, 
conceived this property to be secure by these 
words. I believe, whatever we may think here, 
that there was not a member of the Virginia dele- 
gation, who had the sm.allest suspicion of the abo- 
lition of slavery. Go to their meaning. Point 
out the clause where tliis fonuidable power of 
emancipation is inserted. But another clause of 
the constitution proves the absurdity of the suppo- 
sition. ^"The words of the clause are, ' No person 
held to service or labor in one state, under the laws 
thereof, escaping into another, shall, in consequence 
of any law or regulation therein, be discharged from 
such service or labor, but shall be delivered up on 
claim of the party to whom such service or labor 
may be due.' Every one knows that slaves are 
held to service or labor; and when authority is 
given to owners of slaves to vindicate their pro- 
perty, can it be supposed they can be deprived of 
it ? If a citizen of this state, in consequence of this 
clause, can take his runaway slave in Maryland, 
can it be seriously thought, that after taking him 
and bringing him home, he could be made free V't 

» Elliott's Debates : p. 433. 

t Id. vol. 2, p. (37. 



Slavery and the Constitution. 



The sentiment oi North Carolina, liSe that of land shall moreover produce the copy of an indict- 
F.^,m«, was strong y opposed to any continuance ment found, or an affidavit made before a magis- 



was equally necessary to satisfy the minds of the 
people, that the property then existing in slaves 
was secured and protected. 

\ATien, in the convention of North Carolina, the 
last clause of the second section of the fourth 
article was read, Mr. Iredell explained the reason 
of the clause. " In some of the northern states," 
he observed, "they have emancipated all their 
slaves. If any of our slaves go there, and remain 
there a certain time, they would, by the present 
laws, be entitled to their freedom, so that their 
masters could not get them again. This would 
be extremely prejudical to the inhabitants of the 
southern states, and to prevent it, this clause is 
inserted in the constitution. Though the word 
slave be not mentioned, this is the meaning of it. 
The northern delegates, owing to their p'eculiar 
scruples on the subject of slavery, did not choose 
the word slave to be mentioned."* 

On the other hand, the countenance given by the 
constitution to slavery, was urged to the north as a 
reason against ratifying it. Upon this subject, the 
followmg sensible remarks were made in the con- 
vention of iWajMcA!«e«5, by General Heath: "I 
apprehend," said he, "that it is not in our power to 
do any thing for or against those who are in sla- 
very in the southern states. No gentleman within 
these walls detests every idea of slavery more than 
I do. It is generally detested by the people of this 
commonwealth ; and I ardently hope that the time 
will soon come, when our brethren in the southern 
states will view it as we do, and put a stop to it ; 
but to this we have no right to compel them. Two 
questions naturally arise. If we ratify the consti- 
tution, shall we do any thing by our act to hold the 
blacks in slavery ; or shall we become the partakers 
of other men's sinsi I think, neither of them. 
Each state is sovereign and independent, to a cer- 
tain degree ; and they have a right, and will regu- 
late their own internal aftaii-s as to themselves ap- 
pears proper ; and shall we refiise to eat or drink, 
or to be united with those who do not think or act 
just as we do? Surely not. We are not, in this 
case, partakers of other men's sins ; for in nothing 
do we voluntarily encourage the slavery of our fel- 
low men."t 

Sentiments of this character finally prevailed; 
and such sentiments should now govern the con- 
duct of the north. 

4. Laws of the United Slates. — The act of 
Congress, approved February 12, 1793, provides, 
that whenever the executive authority of any 
state in the Union shall demand any person as 
a fugitive from justice, of the executive authority 
of any state to which such person shall have fled, 

* EllioU'.i Debate! : vol. 2, p. 157. t Id- ■ vol. 1, p. 124 



with having committed treason, felony, or other 
crime, certiiied as authentic by the governor, or 
chief magistrate of the state from whence the per- 
son so charged fled, it shaU be the duty of the ex- 
ecutive authority of the state, to which such per- 
son shaU have fled, to cause him or her to be ar- 
rested and secured, and notice of the arrest to be 
given to the executive authority making such de- 
mand, or to the agent of such authority appointed 
to receive the fugitive, and to cause the fugitive 
to be delivered to such agent when he shaU ap°pear. 
Another section of the same act provides, that 
when a person held to labor in any of the United 
States, under the laws thereof, shall escape into 
any other of the states, the person to whom such 
labor or service may be due, his agent or attorney, 
is empowered to seize or arrest such fugitive from' 
labor, and to take him or her before any judge of 
the circuit or district courts of the United States, 
residing or being within the state, or before any ma- 
gistrate of a county, city, or town corporate, wherein 
such seizure or arrest shall be made; and upon 
proof to the satisfaction of such judge or magis- 
trate, either by oral testimony or affidavit, taien 
before and certified by a magistrate of any other 
state, that the person so seized or arrested doth, 
under the laws of the state from which he or she 
fled, owe senice or labor to the person claiming him 
or her, it shall be the duty of such judge or magis- 
trate to give a certificate thereof to such claimant, 
his agent or attorney, which shall be sufficient war- 
rant for removing the said fugitive from labor, to 
the state or territory from which he or she fled. 

The last section of the act declares, that any per- 
son who shall, knowingly and wUlingl}-, obstruct or 
hinder such claimant, his agent or attorney, in so 
seizing or arresting such fugitive from labor; or 
shall rescue such fugitive from such claimant, his 
agent or attorney, when so arrested, pursuant to 
the authority herein given or declared ; or shall 
harbor or conceal such person, after notice that he 
or she was a fugitive from labor as aforesaid, shall, 
for either of the said oflences, forfeit and pay the 
siun of five hundred dollars; which penalty may be 
recovered by, and for the benefit of such claimant, 
by action of debt in any court proper to try the 
same : saving moreover to the person claiming such 
labor or service, his right of action for, or on ac- 
count of the said injuries, or either of them. 



_i. Judicial Decisions as to Fugitives from La- 
bor. — The second section of the fourth article of 
the constitution, is confined to persons held to ser- 
vice or labor in one state, under the laws thereof, 
who escape into another. Where the master vo- 
luntarily carries his slave from one state into ano- 
ther, the master must abide by the laws of the latter 



8 



Slavery and the Conslitution. 



state, so far as they may affect his right of property 
in the slave.* 

But if the slave comes from one state into another, 
in any other way than by the consent of the owner, 
whether he comes in as a fugitive or runaway, or is 
brought in by tliose who have no authority so to do, 
he cannot be dischargedvunder any law of the latter 
state, but must be delivered up on claim of the party 
to whom his service or labor may be due.f 

It is, however, only the slave escaping into ano- 
ther state that is provided for. Hence it has been 
adjudged, that birth in Pennsylvania gives freedom 
to the child of a female slave who escaped before 
she became pregnant. J 

A slave is incapable of contracting, so as to im- 
pair the right of his master to reclaim him ; and. if 
a private individual sue out process, or interfere 
otherwise with the master's claim, under the pre- 
tence of a debt contracted by the slave, such inter- 
ference will be deemed illegal, and the claimant 
will have a right of action for any injury he may 
receive by such obstruction. § 

But it is held, that slaves are not exempt from 
the penal laws of any state in which they may hap- 
pen to be. And this doctrine has been carried so 
far, that in a case in Pennsylvania, in which there 
was no doubt upon the evidence of the negro being 
the slave of the claimant, he was detained in prison 
to answer a charge of fornication and bastardy. On 
the part of the master it was contended, that such 
a charge was not sufficient ground to prevent the 
delivery ; for the object of a prosecution for it was 
the indemnity of the public — and a slave having no 
property could pay nothing. Tilghman, Chief Jus- 
tice, said — " Fornication has always been prose- 
cuted in this state as a crime. By the law of 1705, 
it was subject to the punishment of whipping, or a 
fine of ten pounds, at the election of the culprit. 
The punishment of whipping has been since abo- 
lished, but the act of fornication is still considered 
as a crime ; and where it is accompanied with bas- 
tardy, security must be given to indemnify the 
county against the expense of maintaining the child. 
It may be hard on the owner to give this security, 
or lose the service of his slave ; but it is an incon- 
venience to which this kind of property is unavoida- 
bly subject. The child must be maintained ; and 
it is more reasonable that the maintenance should 
be at the expense of the person who has a right to 
the service of the criminal, than at that of the peo- 
ple of this city who have no such right. "|| 

If a person shall, in violation of the act of Con- 
gress, knowingly and willingly obstruct, or hinder 
the claimant in seizing the fugitive, he cannot, when 
sued for the penalty of five hundred dollars pre- 

♦ Ex parte Simmons : 4 Wash. C. C. R. 396. 

^ Butler, cfc. V. Delaplaine: 7 Serg. and Rawlc, 378. 

t Cam. V. Holloway: 2 Serg. and Rawlc, 305. 

i) Glen v. Hodges : 9 Johns. 62. 

It Com. r. Hollmiiay : 3 Serg. and Rawlc, 1. 



scribed by the act, set up as a defence ignorance 
of the law, or even an honest belief that the person 
claimed as a fugitive did not owe service to the 
claimant. Such matters are unfit for the inquiry 
of the jury. It is sufficient to bring the defendant 
within the provisions of the law, if having notice, 
either by the verbal declarations of those who had 
the fugitive in custody, or were attempting to seize 
him, or by circumstances brought home to the de- 
fendant, that the person was a fugitive, or was ar- 
rested as such, he persists, nevertlielcss, in ob- 
structing the seizure, or in making a rescue :* and 
the offence is jomplete, although the claimant should 
ultimately succeed in arresting or recovering pos- 
session of the fugitive.! 

If the fugitive being once in custody, should of 
his own accord evade his keeper and escape, or 
being excited by others to do so, should make the 
attempt, and an obstruction should be interposed to 
hinder the recaption of the fugitive, the offence 
would be precisely the same as it would have been, 
had the same obstruction been interposed to the 
original seizure or arrest ; and so on, as often as 
the like hindrance may occur in repeated attempts 
to make the seizure after an escape has taken 
place. J 

The act of Congress (jonfers only a limited au- 
thority upon the magistrate to examine into the 
clauu of the alleged owner; and, being satisfied on 
that point, to grant him a certificate to that effect. 
This is the commencement and termination of his 
duty. He has no authority to issue a warrant to 
apprehend the fugitive in the first instance, or to 
commit him after the examination is concluded and 
the certificate given. Pending the examination, 
wliilst the fugitive is in custodia legis, the judges of 
the courts of the United States, held in Pcnnsylra- 
tiia, have always considered themselves at liberty, 
to commit from day to day, till the examination is 
closed, or else the fugitive could not safely be in- 
dulged with time to get his witnesses to disprove 
the claim of the asserted owner, should he have 
any.^ 

The effect of a certificate given by a judge or 
magistrate, under the act of Congress, has been much 
discussed in the cases which have arisen in the 
northern states ; and decisions have been made upon 
the subject by the highest judicial tribunals in seve- 
ral of the states. 

In 1819, a colored man, claimed by a citizen of 
Maryland as a fugitive from his service, was ar- 
rested by him in the county of Philadelphia, and 
carried before a justice of the peace, who commit- 
ted the man to prison, in order that inquiry might 
be made into the claim. The man then sued out 

» Washington 3 m Hill v. Lmc: 4 Wash. C. C. R. 339. 
t Id. 330. 
t Id. 331. 

Ij Washington J. in Worthington v. Preston : 1 Wash. C. C. 
R. 463. 



Slavery and the Constitution. 



9 



a habeas corpus, returnable before a judge of the 
court of common pleas. The judge after hearing 
the parties, gave a certificate that it appeared to 
him by sufficient testimony, that the man owed la- 
bor or service to the claimant from whom he had 
absconded, and delivered the certificate to the claim- 
ant that he might remove the man to the state of 
Maryland. A writ de honune replegiando was 
then sued out by the man against the keeper of the 
prison ; and the counsel for the claimant moved to 
quash it, on the ground of its having issued contrary 
to the constitution and laws of the United States. 
The matter was regarded by the supreme court of 
Pertnsylvania as of considerable importance, and 
it was therefore held some days under advisement. 
Chief Justice Tilghman delivered the opinion of the 
court. " Whatever,"' said he, " may be our private 
opinions on the subject of slavery, it is well known 
that our southern bretliren would not have consented 
to become parties to a constitution, under which 
the United States have enjoyed so much prosperity, 
unless their property in slaves had been secured. 
This constitution has been adopted by the free con- 
sent of the citizens of Pennsylvania ; and it is the 
duty of every man, whatever may be his office or sta- 
tion, to give it a fair and candid construction," The 
Chief Justice cites the provision in the second sec- 
tion of the fourth article of the constitution, and 
observes — " here is the principle : the fugitive is to 
be delivered up on claim of the master. But it re- 
quired a law to regulate the manner in wldch this 
principle should be reduced to practice. It was 
necessary to establish some mode in which the claim 
should be made, and the fugitive be delivered up." 
The judge then quotes the enactment on the sub- 
ject by Congress, and concludes the opinion as fol- 
lows : " It plainly appears from the whole scope 
and tenor of the constitution, and act of Congress, 
that the fugitive was to be delivered up on a sum- 
mary proceeding, without the delay of a formal 
trial in a court of common law. But if he had 
really a right to freedom, that right was not im- 
paired by this proceeding. He was placed just in 
the situation in which he stood before he fled, and 
might prosecute his right in the state to which he 
belonged. Now, in the present instance, the pro- 
ceeding before Judge Armstrong, and the certifi- 
cate granted by him, are in exact conformity to the 
act of Congress. That certificate therefore was a 
legal warrant to remove the plaintiff to the state of 
Maryland. But if this WTit o{ homine replegiando 
is to issue from a state court, what is its effect but 
to arrest the warrant of Judge Armstrong, and 
thus defeat the constitution and law of the United 
States ! The constitution and the law, say that the 
master may remove his slave by virtue of the Judge's 
certificate : but the state court says, that he shall 
not remove him. It appears to us, that this is the 
plain state of the matter, and that the writ has been 
issued in violation of the constitution of the United 



States. We are therefore of opinion that it should 
be quashed."* 

In 18-23, a case, under the same sgction of the^ 
act of Congress, came before the supreme court of 
Massachusetts. Randolph, a slave, the property of 
one McCarty, of the state of Virginia, had fled from 
the service of his master. After getting to Mas- 
sachusetts, he acquired a dwelling-house in IS'ew 
Bedford, which he held as his own. After living 
in New Bedford four or five years, he was seized 
by one Griffith under the act of Congi-ess. Griffith 
had authority in writing (with a scroll in the place 
of a seal) from one Mason, the administrator on the 
estate of McCarty, and made the seizure as Ma- 
son's agent and attorney. Griffith was indicted for 
an assault and battery and false imprisonment, and 
a verdict was taken against him. It was agreed 
that if the court should determine that the act of 
Congress was liot valid, or that the administrator 
had not power according to the true construction 
of that act, and of the laws of Virginia, by himself, 
his agent, or attorney, to reclaim the slave, or that 
the letter of attorney was not sufficient to operate 
in Massachusetts, then the verdict should stand ; 
otherwise that the defendant should be discharged. 
Parker, Chief Justice, delivered the opinion of a 
majority of the court, in substance as follows : 

" The first question is, whether the defendant 
was duly empowered as an agent to reclaim the 
slave ! We do not decide, whetlier a scroll is a 
seal, though probably it would not be so considered 
in this state. But we think that a letter of attor- 
ney was not required to communicate power to this 
agent. In general, a seal is not necessary, except 
to authorize the making of a aealed instrument. A 
common letter, or a parol authority, is sufficient for 
making many important contracts. The words of 
the statute are, ' the person to whom such labor or 
service may be due, his agent or attorney.' If a 
letter of attorney were required, the statute would 
have used the word attorney only ; but the word 
agent being also used, serves to explain the inten- 
tion of the legislature." 

" The question then is, whether Mason, having 
been duly appointed administrator under the laws of 
Virginia, had a right to come here himself and 
claim the slave ; for the claim by his agent was the 
same as if made by himself! It has been decided 
that a foreign administrator cannot come here to 
collect a debt ; and if it was necessary to pursue 
the slave in the character of administrator, the au- 
thorities are clear against the defendant. But by 
the statute of the United States, the person to 
whom the service is due may reclaim ; and by the 
laws of Virginia an administrator is such person. 
Taking both together. Mason might come here to 
reclaim, and it was not necessary that he should 
come in the character of an administrator." 

" This brings the case to a single point, whether 

* Case of Wriglit r. Deacon : 5 Serg. aad Rawle, 62. 



10 



Slavery and the Constitution. 



the statute of the United States, giving power to 
seize a slave without a warrant, is constitutional I 
It is difficult, in a case like this, for persons who 
are not inhabitants of slave-holding states, to pre- 
vent prejudice from having too strong an effect on 
their minds. We must reflect, however, that the 
constitution was made with some states, in which 
it would not occur to the mind to inquire whether 
slaves were property. It was a very serious ques- 
tion when they came to make the constitution, what 
should be done with their slaves. They might have 
kept aloof from the constitution. That instrument 
■was a compromise. It was a compact by which all 
are bound. We are to consider then what was the 
intention of the constitution. The words of it were 
used out of delicacy, so as not to offend some in 
the convention whose feelings were abhorrent to 
slavery ; but we there entered into an agreement 
that slaves should be considered as" property. Sla- 
very would still have continued, if no constitution 
had been made." 

" The constitution does not prescribe the mode 
of reclaiming a slave, but leaves it to be determined 
by Congress. It is very clear that it was not in 
tended that application should be made to the ex 
eculive authority of the state. It is said that the 
act which Congress has passed on this subject, is 
conlrary to the amendment of the constitution, so 
curing the people in their persons and property 
against seizures, &c., without a complaint upon 
oath. But all the parts of the instrument are to be 
taken together. It is very obvious that slaves are 
not parties to the constitution, and the amendment 
has relation to the parties." 

" It is said that when a seizure is made, it should 
be made conformably to our laws. This does not 
follow from the constitution ; and the act of Con- 
gress says that the person to whom the service is 
due may seize, &b. Whether the statute is a harsh 
one, is not for us to determine. 

" But it is objected, that a person may in this 
summary manner .seize a freeman. It may be so, 
but this would be attended with mischievous conse- 
quences to the person making the seizure, and a 
habeas corpus would lie to obtain the release of the 
person seized. 

" We do not perceive that the statute is unconsti- 
tutional, and we think that the defence is well made 
out."* 

In Neiv Yoriythe writ ile hamine replegiando 
has been more frequently resorted to than in the 
other northern states. In 1834, a man who was 
brought before the recorder of the city of New 
Yoi-f:, as a fugitive slave, sued out a wTit of homine 
rep/ngianih, upon which an issue was joined and 
tried in the \eie York circuit, and a verdict found 
that the man owed service to the person claiming 
him ; on which verdict, judgment was rendered. 
The supreme court of New York decided, that the 
* Com. V. Griffith ; 2 Pick. 1 1 . 



proper course then was for the recorder to grant a 
certificate allowing the removal of the fugitive.* 
The constitutionality of a law of New York, 
which provides for the arrest of fugitive slaves, in 
a manner difTerent in some respects from the act of 
Congress ; and gives to one, claimed as a slave, the 
writ oi homine replegiando against the person claim- 
ing the service — and suspends all proceedings be- 
fore the judge or magistrate, and the removal of the 
slave under the certificate, until final judgment shall 
be given on this writ ; was discussed in another case 
before the supreme court of the state of New York, 
wliich was heard in the same year. 

Judge Nelson, who delivered the opinion of the 
supreme court on the question as to the effect of 
the act of Congress, and of the statute of Netn 
York, says — "To ascertain which is entitled to 
paramount authority, we must go back to the source 
of power — the provision of the constitution ; that 
being conceded to be supreme, and any law in pur- 
suance- thereof controlling. The first clause is 
merely prohibitory upon the states, and forbids the 
enactment of any law or the adoption of any regu- 
lation, in the case of a fugitive slave, by which he 
may be discharged from the service of his master ; 
and this prohibition upon the state power thus far, 
is unqualified and complete, as it necessarily in- 
cludes a restriction against any measure tending, 
in the slightest degree, to impair the right to such 
service. No ' law or regulation' of a state being 
permitted to discharge it, the claim or title of the 
ner remains as perfect within the jurisdiction of 
the state to which the fugitive has fled, after his ar- 
rival and during his continuance, as it was in and 
under the laws of the state from which he escaped. 
The service there due, and the escape being es- 
tablished, so ejcplicit are the terms of the constitu- 
tion, no rightful authority can be exercised by the 
state to vary the relation existing between the par- 
ties. To this very qualified extent, slavery may 
be said still to exist in a state, however effectually 
it may have been denounced by her constitution and 
laws. On this point there can be no diversity of 
opinion as to the intent and meaning of this provi- 
sion ; the doubt arises upon the construction to be 
given to the next clause : ' but shall be delivered 
up on claim of the party to whom such service or 
labor may be due,' The counsel for the plaintiff in 
error contends, the mode of making the claim and 
of delivering up the fugitive, is a subject exclusively 
of state regulation with which Congress has no right 
to interfere ; and upon this view, the constitutionality 
of the law of this state is sought to be sustained." 
" It is material to look into the object of this 
clause of the constitution; the evil to be guarded 
against, and the nature and character of the rights 
to be protected and enforced, in order to compre- 
hend its meaning and determine what powers and 
to what extent may be rightfully claimed under it." 

« F!vi/d V. Recorder of \cw York: 11 Wend. 180. 



Slavery and the Constitution. 



11 



"At the adoption of the constitution, a small mi- 
nority of the states had abolished slavery within 
their Umits, either by positive enactment or judicial 
adjudication ; and the southern states are known to 
have been more deeply interested in slave labor than 
those of the north, where slavery yet to some extent 
existed, but where it must have been seen it would 
probably soon disappear. It was natural for that 
portion of the Union to fear, that the latter states 
might, under the influence of this unhappy and ex- 
citing subject, be tempted to adopt a course of le- 
gislation that would embarrass the owners pursuing 
their fugitive slaves, if not discharge them from 
service, and invite escape by affording a place of 
refuge. They already had some experience of the 
perplexities in this respect, under the confederation, 
which contained no provision on the subject ; and 
the serious and almost insurmountable difficulties 
that this species of property occasioned in the con- 
vention, were well calculated to confirm their strong- 
est apprehensions. To this source must be attri- 
buted, no doubt, the provision of the constitution, 
and which directly meets the evil, by not only pro- 
hibiting the states from enacting any regulation 
discharging the slave from service, but by directing 
that he shall be delivered up to the owner. It im- 
plies a doubt whether the}- would, in the exercise 
of unrestrained power, regard the rights of the 
owner, or properly protect them by local legislation. 
The object of the provision being thus palpable, it 
should receive' a construction that will operate most 
effectually to accomplish the end consistent with 
the terms of it. This we may reasonably infer will 
be in accordance with the intent of the makers, and 
will regard, with becoming respect, the rights of 
those especially interested in its execution. Which 
power then, was it intended sjiould be charged with 
the duty of prescribing the mode in which this in- 
junction of the constitution should be carried into 
effect, and of enforcing its execution — the States or 
Congress ! It is very clear, if left to the former, the 
great purpose of the provision might be defeated, 
in spite of the constitution. The States might omit 
any legislation on the subject, and thereby leave the 
owner without any known means by which to as- 
sert his rights ; or they miglit so encumBer and em- 
barrass the prosecution of them, as that their le- 
gislation on the subject would be tantamount to de- 
nial. That all this could not be done, or omitted, 
without disregarding the spirit of the constitution, is 
true, but the provision itself is founded upon the 
assumption, that without it the acknowledged rights 
of the owners would not be observed or protected : 
it was made in express terms to guard against a 
possible act of injustice by the state authorities. 
The idea that the framers of the constitution in- 
tended to leave the regulation of this subject to the 
states, when the provision itself obviously sprung 
out of their fears of partial and unjust legislation by 
^he states, in respect to it, cannot readily be admit- 



ted. It would present an inconsistency of action, 
and an unskilfulness in the adoption of means for 
the end in viev., too remarkable to have been over- 
looked by a nmch less wise body of men. They 
must naturally have seen and felt, that the spirit 
apprehended to exi-it in the States, which made 
this provision expedient, would be able to frustrate 
its object in regulating tlie mode and manner of 
carrying it into effect ; that the remedy of the evil 
and the security of rights would not be complete, 
unless this power was also vested in the national 
government." 

" I am satisfied "from an aMentive perusal of this 
provision, that a fair interpretation of the terms in 
which it is expressed, not only prohibits the States 
from legislation upon the question involving the 
owner's right to this species of labor, but that it is 
intended to give to Congress the power to provide 
the delivering up of the slave. It is peremptory 
and unqualified, that ' he shall be delivered up upon 
claun of the party to whom such service or labor 
may be due.' The right of the owner to reclaim 
the fugitive in the state to which he has fled, has 
been yielded to him by the States. Without this 
provision it would have been competent for them to 
have wholly denied .such claim, or to have qualified 
it at discretion. All this power they have parted 
with ; and the owner now has not only an unquali- 
fied right to the possession, but he has the guaranty 
of the constitution in respect to it. It is obvious, 
if Congress have not the power to prescribe the 
mode and manner of the ' delivering up,' and thereby 
provide the means of enforcing the execution of the 
rights secured by this provision, its solemn guaranty 
may be wholly disregarded, in defiance of the go- 
vernment. This power seems indispensable to ena- 
ble it faithfully to discharge the obligation to the 
states and citizens interested. The subject itself, 
as well from its nature as from the persons alone 
interested in it, seems appropriately to belong to 
the national government. It concerns rights held 
under the laws, to be enforced within the jurisdic- 
tion of states other than those in which the citizens 
generally interested in them reside, and on a sub- 
ject too, known deeply to affect the public mind ; 
and in respect to which distinct and adverse in- 
terests and views had alreadj' appeared in the Union. 
It was therefore fit and proper that the whole mat- 
ter should be placed under the control of Congress, 
where the rights and interests of the different sec- 
tions of the countr}', liable to be influenced by local 
and peculiar causes, would be regulated with an in- 
dependent and impartial regard to all. It was a 
subject affecting citizens at the time, more or less, 
in almost every part of the Union — a uniform rule 
respecting which was desirable, and could be at- 
tained only by placing it under the action of the na- 
tional government. We may add also, that as the 
power of legislation belonging to the states is in 
no instance derived from the constitution of the 



12 



Slavery and the Constitution. 



United States, but flows from their own sovereign 
authority, any law they might pass on the subject 
^vould not be binding beyond tlieir jurisdiction — and 
any precept or authority given in pursuance of it, 
would convey none to the owner to remove the fu- 
gitive beyond it : the authority of each state through 
which it was necessary to pass would become in- 
dispensable." 

" Great consideration also we think due to the 



the matter, so far as the state courts are con- 
cerned."* 

These extract's are from the opinion of a gentle- 
man who has since been appointed to the high and 
responsible office of Chief Justice of the State. 
The opinion from which the extracts are made is, 
in all its parts, creditable to the judge who gave it, 
for the force of its views, and the ability with which 
thev are urged : but it is still more creditable on 



law of 1793, as a contemporaneous exposition of [other grounds. The judge has shown throughout, 



the constitutional provision. It was passed about 
four years after the adoption of the constitution, by 
a Congress which included some of the most distin- 
guished members of the convention. At the dis- 
tance of furtj' years, we should hesitate long before 
we came to the conclusion that an error was com- 
mitted in the construction of this instrument under 
such circumstances, and which has been ever since 
acquiesced in, so far as we know, without question. 
Our own statute books also show, that down to 
1830, no attempt had been made here by state 
legislation to interfere with this regulation of Con- 
gress. 

" Shall the certificate of the magistrate, under 
the law of 1793, which declares it ' shall be a suffi- 
cient warrant for removing the fugitive from labor 
to the state or territory from which he fled^' be per- 
mitted to perform its office ? — or shall the writ under 
the state law prevent itl They are antagonist and 
irreconcilable powers, and the case forcibly exem- 
plifies the impracticability and danger of the exer- 
cise of both upon the same subject, and the wisdom 
of the rule that forbids it. It has been said, that 
under the law of 1793 a free citizen might be seized 
and carried away into captivity ; and hence the ne- 
cessity of the law of the state, giving to him a trial 
by jury upon the question of freedom." 

" The proceedings are before a magistrate of our 
own state, presumed to possess a common sympa- 
thy with his fellow-citizens ; and where, upon the 
supposition that a freeman is arrested, he may 
readily procure the evidence of his freedom. If 
the magistrate should finally err in granting the 
certificate, the party can still resort to the protec- 
tion of the national judiciary. The proceedings by 
which his rights have been invaded being under a 
law of Congress, the remedy for error or injustice 
belongs peculiarly to that high tri1)unal. Under 
their ample shield, the apprehension of captivity 
and oppression cannot be alarming. 

" It is sufficient for this case, that the plaintiff 
was brought before an officer authorized by the law 
of Congress to hear and determine the question and 
grant the certificate — that such hearing did take 
place ; and that tlie certificate was granted. 

"According to the view of the case we have 
taken, the question of slave or not, according to the 
laws of the state from whence the fugitive fled, be- 
longed to the magistrate under the law of Con- 
gress to decide ; and his decision is conclusive in 



that the local prejudices and prepossessions of those 
amongst whom his lot has placed him are not suf- 
ficient to swerve him from a right decision, but that 
his duty to uphold the constitution and laws of the 
Union will he honestly and independently per- 
formed. 

After this decision' of the supreme court of the 
state of Neiv York in the case oi Jack v. Martin, 
the cause was removed in behalf of the slave into 
the court of errors — a court constituted of the pre- 
sident of the senate, chancellor of the state, judges 
of the supreme court, and all the senators. The 
hearing before the court of errors was in Decem- 
ber, 1835. 

Only two opinions were delivered at large. They 
were by the chancellor, and senator Bishop. 

The chancellor, after remarking that the deci- 
sion of the court below was put upon the ground 
that Congress not only had the power to legislate 
upon the subject, but that their legislation must ne- 
cessarily be exclusive in relation to this matter, 
proceeded as follows : 

" I am one of those who have been in the habit 
of believing, that the state legislatures had general 
powers to pass laws on all subjects, except those in 
which they were restricted by the Constitution of 
the United Slates, or their own local constitutions ; 
and that Congress had no power to legislate on any 
subject, except so far as the power was delegated 
to it by the Constitution of the United States. I 
have looked in vain, among the powers delegated to 
Congress by the constitution, for any general au- 
thority to that body to legislate on this subject. It 
certainly is not contained in any express grant of 
power, and it does not appear to be embraced in 
the general grant of incidental powers, contained 
in the last clause of the constitution, relative to the 
powers of Congress. Const., art. 1, sec. 8, sub. 17. 
The law of the United States respecting fugitives 
from justice and fugitive slaves, is not a law to 
carry into effisct any of the powers expressly 
granted Jo Congress, ' or any other power vested 
by the constitution in the government of the United 
States, or any department or officer thereof.' It 
appears to be a law to regulate the exercise of the 
rights secured to the individual states, or the in- 
habitants thereof, by the second section of the 
fourth article of the constitution; which section, 
like the ninth section of the fourth article, merely 
'J.Klt V. Martin: 12 'Wend. 311. 



Slavery and the Constitution. 



13 



imposes a restriction and a duty upon other states 
and individuals in relation to such rights, but I'esls 
no power in the federal ijovernment, or any depart- 
ment or officer thereof, except the judicial power of 
declaring and enforcing the rights secured by the 
constitution. The act of February 1793, confer- 
ring ministerial powers upon the state magistrates, 
and regulating the exercise of the powers of the 
state executive, is certainly not a law to carry into 
effect the judicial power of the United States ; 
which judicial power cannot be vested in state offi- 
cers. If the provisions of the constitution as to 
fugitive slaves and fugitives from justice, could not 
be carried into effect without the actual legislation 
of Congress on the subject, perhaps a power of 
federal legislation might be unplicd from the con- 
stitution itself; but no such power can be inferred, 
from the mere fact that it may be more convenient 
that Congress should exercise the power, than that 
it sliould be exercised by the state legislatures. In 
these cases of fugitive slaves and fugitives from jus- 
tice, it is not certain that any legislation whatever 
is necessary, or was contemplated by the constitu- 
tion. The provision as to persons escaping from 
servitude in one state into another, appears by their 
journal to have been adopted by a unanimous vote 
of the convention. At that time, the existence of 
involuntary servitude, or the relation of master and 
servant, was known to and recognized by the laws 
of every state in the Union, except Massachusetts ; 
and the legal right of recaption by the master ex- 
isted in all, as a part of the customary or common 
law of the whole confederacy. On the other hand, 
the common law writ de homine replegiando, for 
the purpose of tr5'ing the right of the master to 
the services of the slave, was well known to the 
laws of the several states ; and was in constant use 
for that purpose, except so far as it had been super- 
seded by the more summary proceeding by habeas 
corpus, or by local legislation. The object of the 
framers of the constitution, therefore, was. not to 
provide a4iew mode by which the master might be 
enabled to recover the services of his fugitive slave, 
but merely to restrain the exercise of a power, 
which the state legislatures respectively would 
otherwise have possessed, to deprive the master of 
such pre-existing right of recaption. 

'"If the person whose services are claimed, is in 
fact a fugitive from servitude under the laws of 
another state, the constitutional provision is im- 
perative, that he shall be delivered up to his mas- 
ter upon claim made ; and any state officer or pri- 
vate citizen, who owes allegiance to the United 
States, and has taken the usual oath to support the 
constitution thereof, cannot, without incurring the 
moral guilt of perjur)', do any act to deprive the 
master of his right of recaption, where there is no 
real doubt that the person whose services are 
claimed is in fact the slave of the claimant. How- 
ever much, therefore, we may deplore the existence 



of slavery in any part of the Union, as a national 
as well as a local evil, yet, as the right of the mas- 
ter to reclaim his fugitive slave is secured to him 
by the federal constitution, no good citizen, whose 
liberty and property is protected by that constitu- 
tion, will interfere to prevent this provision from 
being carried into full effect, according to its spirit 
and elTect ; and even where the forms of law are 
resorted to for the purpose of evading the consti- 
tutional provision, or to delay the remedy of the 
master in obtaining a return of his fugitive slave, it 
is undoubtedly the right, and may become the duty, 
of the court in which any proceedings for that pur- 
pose are instituted, to set them aside, if they are 
not commenced and carried on in good faith, and 
upon probable grounds for believing that the claim 
of the master to the service of the supposed slave 
is invalid." 

The chancellor then examined the pleadings in 
the cause, by which the fact appeared to be admit- 
ted on the record, that the plaintiff owed service or 
labor to the defendant in another state, and had es- 
caped from such servitude. Without reference to 
the validity of the act of Congress, or of any state 
legislation on the subject, he considered the fact 
thus admitted sufficient, under the constitution, to 
entitle the defendant to judgment Tor a return of the 
slave. And he therefore arrived at the conclusion, 
that the judgment of the supreme court should be 
affirmed with costs; and that the damages which 
the defendant in error had sustained, by the delay 
and vexation caused by the WTit of error, should be 
awarded to her. 

The course of reasoning of Senator Bishop, was 
similar to that used by Judge Nelson in the su- 
preme court. 

Upon the question being put — shall this judgment 
be reversed ? — the members of the court unanimous- 
ly voted in the negative, \\liereupon, the judgment 
of the supreme court was affirmed.* 

In a more recent case, a writ de homine reple- 
giando having been sued out, a motion was made 
in August 1837, by the claimant of the alleged 
slave, to quash the writ on the strength of the pre- 
vious decision of the supreme court. The court. 
Nelson, Chief Justice, presiding, directed the mo 
lion to be suspended until the next special term. 
In the meantime, the attorney for the plaintiff had 
leave to prepare and serve his declaration, and the 
attorney for the defendant had leave to plead the 
proceedings had before the recorder under the act 
of Congress; to which the plaintiff might demur, 
with a view to enter the formal judgment of the 
supreme court, so that the cause might be remeved 
to the court of dernier resort in the state, for a final 
decision upon the constitutional question.! 

Thus the matter stands in Neiv York, according 
to the latest reports of decisions of that state. We 

♦ 14 Wend. 507, 539. 

^ Dixon V. Allmler: 18 Wend. 678. 



14 



Slavery and the Constitution. 



have but little to add to what Judge Nelson has 
said upon the subject. 

It is plain that, according to article 4, section 2, 
clause 3, of the constitution, a person held as a 
slave in one state, under the laws thereof, who es- 
capes into another, is not to be discharged from sla- 
very by means of any law or regulation existing in 
the state to which he escapes. 

The owner's property being thus secured and 
protected by the constitution, he has the same right 
to take possession of his slave when he finds him 
in the state lo which he escapes, that he would 
have in the state from which he escaped. A 
upon an escape from one county into another of 
the same state, the owner may take possession of 
his slave in the latter county without any warrant 
or process whatever; .so, upon an escape from one 
state into another of this Union, the owner may, in 
like manner, under the constitution which governs 
the Union, take possession of his slave without any 
warrant or process. 

If, in the state to which the slave escapes, there 
be any state law or state regulation to prevent the 
owner of the slave from taking possession of his 
slave and carrying him away, such state law or 
state regulation violates the provision in the Con- 
stitution of the I. nited States ; and this constitution 
being the supreme law of the land, the state law 
or state regulation which violates the same is null 
and void. 

But there may be a question, whether the person 
who is seized was in truth and in fact held to ser- 
vice in another state under the laws thereof Is 
this question to be tried by a juri/ in the state in 
which the seizure takes place ? Certainly not. The 
counsel who argued the case of Jack v. Martin be- 
fore the court of errors, on behalf of the owner, 
very' correctly observed, that " the constitution evi- 
dently contemplates a stinimari/ investigation. The 
fugitive is to be delivered up ' on claim.' These 
words import a summary proceeding." '• If," said 
he, " it intended to declare that a fugitive servant 
should be delivered up after trial and judgment, 
attended with all the forms of the common law, the 
words ' on claim' would be idle. //<• could not be 
said to be delivered up on claim, whose surrender 
was the result of a final and conclusive judgment." 
The counsel said most truly, that "the citizens of 
the slave-holding states would never have con- 
sented to subject themselves to the necessity of es- 
tablishing their claims to their fugitive slaves, be- 
fore juries composed of the inhabitants of non-slave- 
holdjng states. Indeed, the ilifficulty of establish- 
ing the identity by proof that would satisfy the 
strict common law rules of evidence on jury trials, 
and the great delay and expense of successive ap- 
peals, would render even the successful prosecu- 
tion of a claim to service, in the state in which the 
arrest is made, in the ordinary mode by trial and 



Judgment, vexatious and unprofitable to the claim- 
ant." 

All that the claimant has to do is to show, in a 
summary way, that the person whom he claims 
was his slave in another state. 

Ought this inquiry to be gone into l)ofore any 
state tribunal, acting as such? It would seem not. 

It was said by Gov. Randolph, in the Virginia 
convention, that "every government necessarily 
involves a judiciary, as a constitirent part. If then 
a federal judiciary is necessary, what are the cha- 
racters of its powers ? That it shall be auxiliary 
to the federal government, support and maintain 
harmony between the United State's and foreign 
powers, and between different states, and prevent 
a failure of justice in cases to which particular 
state courts are incompetent. If this judiciary be 
reviewed as relative to these purposes, I think it 
will be found that nothing is granted which does 
not belong to a federal judiciary. Self-defence is 
its first object. H^s not the constitution said, that 
the states shall not use such and such powers, and 
given exclusive powers to Congress! If the state 
judiciaries could make decisions conformable to the 
laws of their states, in derogation to the general 
government, I humbly apprehend that the federal 
government would soon be encroached upon. If a 
particular state should be at libertv through its ju- 
diciary to prevent or impede the operation of the 
general government, the latter must soon be un- 
dermined. It is then necessary that its jurisdiction 
should extend to all cases in law and equity, aris- 
ing under tliis constitution and the laws of the 
United States."* 

In the convention of North Carolina, Mr. Davie 
said — " It appears to me that the judiciary ought 
to be competent to the decision of any question 
arising out of the constitution itself On a review 
of the principles of all free governments, it seems to 
me also necessary that the judicial power should 
be co-extensive with the legislative. It is neces- 
sary in all governments, but particulai-ly in a fede- 
ral government, that its judiciary should be com- 
petent to the decision of all questions arising out 
of the constitution." Again, he said — " Every 
member who has read the constitution with atten- 
tion, must observe that the're are certain fundamen- 
tal principles in it both of a positive and negative 
nature, w'hich being intended for the general ad- 
vantage of the communit)', ought not to be violated 
by any future legislation of the particular states. 
Every member will agree, that the positive regula- 
tions ought to be carried into execution, and that 
the negative restrictions ought not to be disre- 
garded or violatei^ Without a judiciary, the in- 
junctions of the constitution may be disobeyed, and 
the positive regulations neglected or contravened. "f 

♦ Elliott's Debates : vol. 2, p. 418. 
tW. vol. 3, p. HI. 



Slavery and the Constitution. 



15 



If there be occasion for the exercise of judicial 
power in any case arising under the provision of 
the constitution in regard to fugitives from labor, 
such judicial power should be exercised, not by a 
state court, but, under art. 3, sec. 2, should be exer- 
cised by a court of the United States ; and Congress 
should, under art. 1, sec. 17, make all laws neces- 
sary and proper for carrying into execution the 
power vested in the judicial department. 

6. Decisions as to Fugitive Criminals. — Under 
the Constitution of the United States, a state within 
the Union has no more right to afford an asylum to 
a person charged with a crime in another state, 
than to those who hav* fled from service or labor. 
" The states," says Mr. Rawle, " are considered as 
a common family, whose harmony would be endan- 
gered if they were to protect and detain such fu- 
gitives, when demanded in one case by the execu- 
tive atithority of the state, or pursued in tlie other 
by the persons claiming an interest in their ser- 
vice."* 

The question, whether theft is a felony of such a 
nature as to make it proper tliat the offender should 
be delivered up, has been discussed in the Ameri- 
can courts, when the deliverj' was to be to a foreign 
state— and on that subject different opinions have 
been expressed ; but the judges have all agreed as 
to the propriety of delivering up felons charged 
with stealing propertj' in a state within the con- 
federacy. 

In the case of the People v. Schenck, 2 Johns. 
Rep. 479, the prisoner was indicted in the city of 
New York for felony in stealing a gun ; and there 
was a special verdict, which found that the prisoner 
did feloniously steal and carrj' away the gun in 
the state of New Jersey. The supreme court of 
New York held, that the prisoner was entitled to 
be discharged upon the indictment in that state, but 
ordered that he should be detained in prison for 
three weeks; and, in the meantime, directed notice 
to be given to the executive of the state of New 
Jersey, that the prisoner was detained on a charge 
of felony committed there, stating that if no appli- 
cation should be made for the delivery of the pri- 
soner within that time, he must be discharged. 

In Sinunons^s case, 5 Binn. 617, the prisoner 
was indicted in the city of Philadelphia, for felo- 
niously stealing and carrying away some silver 
spoons and other articles; and the special verdict 
found that the fact was committed within the state 
of Delaware. The supreme court of Pennsylvania 
approved of what was done in Nete York in the 
case of Schenck, and the proceeding was similar. 

In carrying into effect the provision in the fede- 
ral constitution, " We have," says Chief Justice 
Sacage, " nothing to do with the comity of nations, 
unless perhaps to infer from it tliat the framers of 
our constitution and laws intended to provide a 

* Rawh on the constitution : p. 99. 



more perfect remedy; one which should reach 
every offence criminally cognizable by the laws of 
any of the states; the language being 'treason, 
felony or other crime.'"* 

It was contended before the supreme court of 
New York, in Clark^s case, that a crime of greater 
atrocity was intended by the constitution than was 
charged in that case — and indeed the ground was 
taken that no crime at all had been committed ; for 
it was insisted that the statute of Rhode Island, 
which was alleged to have been violated, contem- 
plated proceedings merely of a cicil nature. Chief 
Justice Savage, who delivered the opinion of the 
court, answered the objection as follows : " The 
first answer is, that the statute of Rhode Island is 
not properly before us. An offence of a highly 
immoral character is stated in the warrant, and is 
certified by the Governor of Rhode Island to have 
been made criminal by the laws of that state. This 
is evidence enough, in this stage of the proceed- 
ings, of the nature of the offence; but if we look 
into the statute of Rhode Island, which has been 
informally read from their statute book, we find a 
criminal offence. It is this : ' That if any officer 
of a bank shall so fraudulently manage its concerns, 
that the public, or any individual dealing with it, 
shall be defrauded in the payment of their just de- 
mands, such officer shall be prosecuted in the su- 
preme judicial court by indictment ; and, on con- 
viction, the offender may be fined $5000.' This 
is very plain language. There is to be a prosecu- 
tion by indictment, and a fine is imposed which 
goes of course to the public — not to the party de- 
frauded. There is nothing here like a civU re- 
medy."! 

" Had our constitution and laws," says Chief 
Justice Savage, " been silent on this subject, and 
no conventional arrangement existed between the 
several states composing our confederacy, it may 
be conceded that the practice arising from the 
comity of nations would be applicable ; and before 
we would surrender in one state any person de- 
manded by another as a fugitive from justice, it 
would be our duty to examine into the evidence of 
the alleged crime, and be satisfied that no reasona- 
ble doubt existed as to his guilt. But under our 
federal government, this matter has been regulated, 
and we are not left to the uncertainty arising from 
an inquiry in one state into the particulars of an 
offence committed in another. The Constitution 
of the United States provides, that ' a person charged 
in any state with treason, felony or other crime, 
who shall flee from justice and be found in another 
state, shall, on demand of the executive authority 
of the state from which he fled, be delivered up to 
be removed to the state having jurisdiction of the 
crime.' Here then is the law on the subject — a 
positive regulation, and tantamount to a treaty 
stipulation; and we are not to resort to the comity 

»C/(irt's cose .-9 Wend. 222. -^9 Wend. 221. 



16 



Slavery and the Constilulion. 



of nations for our guidance. Every person who is 
charged with a crime in any state, and shall flee in 
another, shall be delivered up. It is not necessary 
to be shown that such person is guilty. It is not 
necessary, as under the comity of nations, to ex- 
amine into the facts alleged against him constitut- 
ing the crime. It is sufficient that he is charged 
with having committed a crime."* 

But how charged J The law of Congress has 
answered this question. In order, says the Chief 
Justice of New York, to give the Governor of this 
state jurisdiction in such a case, three things are 
requisite. 1. The fugitive must be demanded b)' 
the executive of the state from which he fled. 2. 
A copy of an indictment found, or an affidavit made 
before a magistrate, charging the fugitive with 
having committed the crime. 3. Such copy of the 
indictment or affidavit must be certified as authen- 
tic by the executive. If these pre-requisites have 
been complied with, then the warrant of the Go- 
vernor properly issues and the prisoner is legally 
restrained of his liberty, f 

In Clark's case, a habeas corpus was awarded, 
directed to the persons having him in custody, com- 
manding them to bring him before the Chief Jus- 
tice and to exhibit the cause of his detention. The 
return upon the writ of habeas corpus, showed that 
he was detained in custody by virtue of a warrant 
issued by the Governor of the state of New York, 
in the following words : 

" Eiios T. Throop, Governor of the state of iVeic 
York, to the sherilF of the city and county of New 
York, and the sheriffs, constables, and other peace 
officers of the several counties in the said state : 
Whereas, it has been represented to me by the Go- 
vernor of the state of Rhode Island, that John L. 
Clark, late of Proridence, in the said state, has 
been guilty of frauds in abstracting from the Bur- 
riloille bank, in that state, money, notes, and bank 
bills, while president of said bank, in a fraudulent 
manner, which said acts are made criminal by the 
laws of thai stale ; and that he has fled from justice 
in that state, and has taken refuge in the state of I 
New York ; and said Governor of Rtiode Island I 
has, in pursuance of the constitution and laws of 
the United States, demanded of me that I should 
cause the said John L. Clark to be arrested, and 
delivered into the custody of Henry G. Munford, 
sheriff of the county of Providence, who is duly 
authorized to receive him into his custody, and 
convey him back to the said state of Rhode Island: 
And, whereas, the said representation and demand 
is accompanied by an affidavit, taken before a jus- 
tice of the peace of the said state of Rhode Island, 
whereby the said John L. Clark is charged with 
the said crime; which affidavit is certified by the 
said Governor of i?Aorfe Islandtohe duly authenti- 
cated : You are therefore required to arrest the 
said John L. Clark, wherever he may be found 
♦9 Wend. 218, 219. t/d- 219. 



within the state, and to deliver him into the custody 
of the said Henry G. Munford, to be taken back 
to the state from vyhence he fled, pursuant to the 
said representation. Given under my hand and 
the privy seal of the state, at the city of Albany, 
this fifth day of May, in the year of our Lord one 
thousand eight hundred and thirty-two.'" 

The opinion of the court as to the validity of 
the cause of detention appearing by this return, 
was delivered by chief justice Savage as follows : 
" It is," said he, " there expressly recited — 1. that 
the Governor of Rhode Island has demanded that 
John L. Clark be arrested and delivered up as a 
fugitive from justice ; 2. that a copy of an affidavit 
was presented charging Clark with certain acts, 
which the governor of Rhode Island certifies are 
made criminal by the laws of that state ; 3. that 
the affidavit is certified by the Governor of Rhode 
Island to be duly authenticated.. — Here then is a 
literal compliance with the constitution and laws of 
the United States ; and the Governor of New York 
had full power and authority to issue his warrant to 
direct Clark to be arrested, and delivered over to 
the agent of the state of Rhode Island." 

Clark made an affidavit to the following effect : 
" that according to the information and belief of 
this deponent, and as he is advised by counsel and 
believes to be true, this deponent has not commit- 
ted any act or thing recited in said warrant ; and 
that he is not guilty of any act or thing which is a 
crime or made criminal under and by the laws of 
the state of Rhode Island, and which is made the 
pretence for said warrant and the arrest of this de- 
ponent ; and this deponent wholly denies the guilt 
as recited in said warrant.. This deponent expressly 
denies that he has fraudulently abstracted from the 
Burrilville bank of Rhode Island money, notes and 
bank bills while president of *aid bank, or at any 
time, or in any manner which is made criminal by 
the laws of that state. On the contrary thereof, 
this deponent says that he has not at any time ab- 
stracted or taken from said bank money, notes and 
bank bills, other than what has been paid to him by 
the cashier or other officer of that bank, and upon 
vouchers or discounted paper entered in course of 
business upon the books of the bank, and sanction- 
ed by the direction or some part thereof, or com- 
mittees, or persons duly authorised in the premises." 

Chief Justice Savage delivered the opinion of the 
court as to the effect of this affidavit, as follows: 
" The prisoner has made an affidavit denying all 
criminality or fraud in relation to the Burnlrtlle 
bank which are charged against him in the affida- 
vit presented to the Governor of this state. But 
whether he is guilty or not is not the question to 
be decided here. It is whether he lias been pro- 
perly charged willt guilt, according to the consti- 
tution and the act of Congress. The prisoner does 
not deny any fact set forth in the warrant upon 
which he has been arrested. It is not denied that 



Slavery and the Cmstitution. 



17 



the Governor of Rhode Island has demanded him 
as a fugitive from justice. It is not denied that an 
affidavit cliarging him with criminality was pre- 
sented to the Governor of New York ; nor is it de- 
nied that the Governor of Rhode Island has certi- 
fied that that affidavit is properly authenticated. 
These are the material facts. Governor Throop 
does not as.sert the prisoner's guilt, but that he had 
before him such evidence as the law directed to 
authorize the issuing his warrant. Whether the 
prisoner is guilty or innocent is not the question 
before us ; nor is any judicial tribunal in this state 
charged with that inquiry. By the constitution, 
full faith and credit are to be given in all the states 
to the judicial proceedings of each state. When 
such proceedings have been had in one state as 
ought to put any individual within it upon his trial, 
and those proceedings are duly authenticated, full 
faith and credit shall be given to them in every 
other state. If such person flee to another state, 
it is not necessary to repeat in such state to which 
he has fled the initiatory proceedings which have 
already been had, but he is to be sent back to be 
tried where the offence is charged to have been 
committed — to have the proceedings consummated 
where they were begun." 

7. Duty of Executive Officers in relation to fu- 
gitive criminals. — All executive officers of the 
states are bound by oath or affirmation to support 
the Constitution of the United States. Art. 6, sec. 2. 

This constitution and the laws of the United 
States made in pursuance thereof, are the supreme 
law of the land, and the judges in every state are 
bound thereby ; any thing in the constitution or 
laws of any state to the contrary notwithstanding. 
Art. 6, sec. 3. 

The supreme law of the land has been so ex- 
pounded by the judges of the supreme court of the 
state of Nexv York as to give to it full effisct. A 
very different exposition has been made by the ex- 
ecutive of that state. 

We premise that by the laws of Virginia, any 
person who shall steal a slave is guilty oi felony, 
and upon conviction thereof is to undergo a con- 
finement in the penitentiary for a period not less 
than three nor more than eight years. 1 R. C. 
1819, p. 427-8, sec. 29. 

The executive authority of Virginia, in July last, 
demanded three persons of the executive authority 
of Nexo York, as fugitives from justice, to wit ; 
Peter Johnson, Edward Smtth and Isaac Gansey. 
There was produced to the executive of New York, 
an affidavit made before a magistrate of Virginia 
by one John G. Collcy of Norfolk borough. The 
affidavit was dated the 22d of July 1839, and 
charged "that on or about the 15th inst. Peter 
Johnson, Edward Smith and Isaac Gansey, now 
attached to the schooner Robert Center, at present 
in Neiv York, did feloniously steal and take from 

3 



the said Colley a certain negro man slave named 
Isaac, the property of said Colley.'''' And this affi- 
davit was certified as authentic by the executive of 
Virginia. It thereupon became the duty of the 
executive of New York, according to the constitu- 
tion and laws of the United States, and according 
also to the decisions of the supreme court of the 
state of New York, to cause the persons so deman- 
ded to be arrested and delivered to the proper agent 
of the executive of Virginia. 

This the Governor of New York has declined 
doing. In a communication of the 16th of Sep- 
tember 1839, to the executive of Virginia, he 
takes the following ground : 

" I beg leave to state most respectfully, that, ad- 
mitting the affidavit to be sufficient in form and 
substance to charge the defendants with the crime 
of stealing a negro slave from his master in the 
state of Virginia, as defined by the laws of that 
state, yet in my opinion, the offence is not within 
the meaning of the Constitution of the United 
States. The words employed in the constitution, 
' treason, felony or other crime,' are indeed very 
comprehensive. It has long been conceded that 
citizens of the state upon which the requisition is 
made, are liable to be surrendered, as well as citi- 
zens of the state making the demand ; and it is fur- 
ther regarded as settled, that the discretion of the 
executive in making the demand is unlimited, while 
the executive upon whom it is made has no legal 
right to refuse compliance, if the offence charged 
is an act of ' treason, felony or other crime,' with- 
in the meaning of the constitution. Can any state 
at its pleasure declare an act to be treason, felony 
or other crime, and thus bring it within the consti- 
tutional provision 1 I confess that such does not 
seem to me the proper construction of the consti- 
tution. After due consideration, I am of opinion 
that the provision applies only to those acts which, 
if committed within the jurisdiction of the state in 
which the person accused is found, would be trea- 
sonable, felonious or criminal, by the laws of that 
state." 

The correspondence which we are now consid- 
ering, furnishes evidence that the Governor of the 
state of New York is an able man ; and we do not 
consider it any reproach to him, that he is not per- 
fectly familiar with the decisions of the supreme 
court of his own state upon questions of constitu- 
tional law. But it is cause of regret that he did 
not, before affirming so important a proposition as 
that contained in the last sentence above quoted, 
consult with his attorney general. Had he done 
so, he must have learnt from him that the supreme 
court of Ncio York had pronounced a different de- 
cision, in Clark^s case. 

The Governor of Neio York proceeds as fol- 
lows : " I do not question the constitutional right of 
a state to make such a penal code as it shall deem 
necessary or expedient, nor do I claim that citizens 



18 



Slavery and the Constitution. 



of another state shall be exempted from arrest, 
trial and punishment, in the state adopting such code, 
however different its enactments may be from those 
existing in tlieir own state. The true question is, 
whether the state of which they are citizens, is un- 
der a constitutional obligation to surrender its citi- 
zens to be carried to the offended state, and there 
tried for offences unknown to the laws of their own 
slate. I believe the right to demand, and the reci- 
procal obligation to surrender fugitives from justice, 
between sovereign and independent nations, as de- 
fined by the law of nations, includes only those 
cases in which the acts constituting the offence 
cliarged are recognized by the universal law of all 
civilized countries." 

Chancellor Kent has expressed the opinion, that 
those crimes " which strilie deeply at the riglits of 
property and are inconsistent with the safety and 
harmony of commercial intercourse, come within 
the mischief to be prevented, and within the neces- 
sity as well as the equity of the remedy. If larce- 
ny may be committed and the fugitive protected, 
why not compound larceny, as burglary and rob- 
bery — and why not forgery and arson 1 They are 
all equally invasions of the rights of property." 
This language is used by the chancellor when dis- 
cussing the propriety of delivering up one charged 
with having committed a theft in a foreign state.* 
And all can see, that it applies with increased force 
to a crime wliicli strikes deeply at the rights of 
property in the south, is inconsistent with the har- 
mony of intercourse between citizens of the north- 
ern and southern states, and tends to impair the 
permanence of the Union and the safety of the 
general government. Such a criine comes within 
the mischief which the Constitution of the United 
Stales designed to prevent, and the remedy should 
be extended to it when the terms that are employed 
are abundantly sufficient to embrace it. 

The Governor of New York, after stating that 
the obligation to surrender under the law of nations, 
includes only those cases in which the acts consti- 
tuting the offence charged are recognized by the 
universal law of all eivUized countries, proceeds as 
follows : 

'* I think it is also well understood, that the object 
of the constitutional provision in question, was to 
recognize and establish this principle in the mutual 
relations of the states, as independent, equal and 
sovereign communities. As they could form no 
treaties between themselves, it was necessarily en- 
grafted in the constitution. I cannot doubt that 
this construction is just. Civil liberty would be 
very imperfectly secured in any country, whose 
government was bound to surrender its citizens to 
be tried and condemned in a foreign jurisdiction, for 
acts not proliibitcd by its own laws. The princi- 
ple, if adopted, would virtually extend the legisla- 
tion of a state beyond its own territory and over 
• Washburn's case : 4 Johns, ch. rep. 113. 



the citizens of another state, and acts which the 
policy and -habits of one state may lead its legisla- 
ture to punish as felon}', must be considered of that 
heinous character in another state for certain pur- 
poses, while for all other purposes they would be 
regarded only as violations of moral law. In some 
of the states of the Union, adultery is made a felony ; 
in another, the being the father of an illegitimate 
child is made a crime ; and in another, marriage 
without license or other formalities is penal. To 
admit the principle that violations of these and simi- 
lar laws, which are in their character mere municipal 
regulations, adapted to the policy of a particular com- 
munity, are " felonies" and " crimes," within the 
meaning of the constitution, would involve the most 
serious consequences, by imposing obligations which 
it would be impossible to execute. It is evidentthere 
must be some limit to the description of crimes meant 
by the constitution ; and that which I have applied in 
this instance seems to me to give full and fair scope 
to the provision, and at the same time preserve the 
right of exclusive legislation to each state over 
persons confessedly within its jurisdiction, while it 
preserves that harmony which is so essential to our 
mutual interest." 

It must in candor be acknowledged that there is 
a good deal of force in some of these observations ; 
and that there is difficulty in holding the term 
crime, in the constitution, as synonymous with of- 
fence. But there is no difficulty at all in establish- 
ing, that, when the Governor of A'ew York takes 
the ground that he will not deliver up a person 
charged in another state with a crime, unless the 
fact charged be recognized as an offence by the 
laws of all civilized countries, and would if com- 
mitted in New York be an offence according to the 
laws of that state, he takes ground which is wholly 
untenable, according to the decision of the supreme 
court of liis own state in Clark's case, and sets up 
a new principle, entirely different from that which 
was acted on by his predecessor, Governor Throop. 

By the laws of Virginia, if any officer of public 
trust in the conmionwealth, or any officer or direc- 
tor of any bank chartered by the commonwealth, 
shall embezzle, or fraudulently convert to his use, 
any sum of money, bank note, bill, check, bond or 
other security or facility placed under his care or 
management, by virtue of his office, or place, the 
person so offending is guilty of felony, and, upon 
conviction thereof, is to be sentenced to imprison- 
ment in the public jail and penitentiary house, for a 
term not less than three nor more than ten years. 
Scss. acts, 1819-20, p. 19, ch. 32, sec. 3. Though 
the act thus made felony by the laws of Virginia, 
was by the common law of England only a breach 
of trust and not punishable criminally, a person 
charged in Virginia with this offence, who should 
flee from justice and be found in another state, 
would, according to governor Throop and the su- 
preme court of Neio York, be delivered up " to the 



Slavery and the Constitution. 



13 



state having jurisdiction of the crime." But ac- 
cording to governor Seward, the fact charged not 
being recognized as a crime by the universal law of 
all civilized countries, there would be no surrender. 
We have no hesitation in declaring, that it seems to 
us it would be a violation of the federal constitution 
not to make the surrender in such a case. 

" However the point may be," says Mr. Justice 
Story., " as to foreign nations, it cannot be question- 
ed that it is of vital importance to the public ad- 
ministration of criminal justice, and the security of 
the respective states, that criminals who have com- 
mitted crimes therein, should not find an asylum in 
other states, but should be surrendered up for trial 
and punishment. It is a power most salutary in its 
general operation, by discouraging crimes and cut- 
ting off the chances of escape from punishment. 
It wiU promote harmony and good feeling among 
the states ; and it will increase the general sense of 
the blessings of the national government. It will 
moreover give strength to a great moral duty, which 
neighboring states especially owe to each other, by 
elevating the policy of the mutual suppression of 
crimes into a legal obligation. Hitherto it has 
proved as useful in practice as it is unexceptionable 
in its character."* 

Governor Seward thus proceeds : " The offence 
charged in the affidavit before me, is not understood 
to be that of kidnapping a person, by which he was 
deprived of his liberty, or held in duress, or suffer- 
ed personal -wrong, or injustice, but it is understood 
to mean the taking of a slave, considered as prop- 
erty, from the owner. If I am incorrect in this sup- 
position, the vagueness and uncertainty of the affi- 
davit must excuse my error. But I think there 
can be no controversy on this point. I need not 
inform you, sir, that there is no law of this state 
which recognizes slavery, no statute which admits 
that one man can bo the proj)erty of another, or that 
one man can be stolen from another. On the other 
hand, our constitution and laws abolish slavery in 
every form. The act charged in the affidavit, if it 
had been committed in this state, would not contra- 
vene any statute ; nor is it necessary to inform you 
that the common law, which is in force in this state 
when not abrogated by statute, does not recognize 
slavery, nor make the act of which the parties are 
accused in this case felonious or criminal." 

The decisions of the supreme court of Ncio York, 
show that until a very recent period, the laws of 
that state recognized slavery, and her statutes ad- 
mitted that one man might be the property of ano- 
ther. Such property was the subject of sale, and 
the owner's rights were protected by the laws. 

It may however be conceded, that the act charg- 
ed in the affidavit, it' it had been committed in New 
York, would not have contravened any existinf 
statute of that state, making such an act felonious, 

» Story an Can^t^ vol. 3, p. 076. 



or criminal. It might further be conceded, th; : the 
act of stealing a slave could not be deemed a r <_;.»- 
mon law felony. And still the conclusion, that the 
act charged in the affidavit is not a felony or crime, 
within the meaning of the federal constitution, is 
one which cannot be sustained, if the precedent of 
governor Throop be correct, and the opinion of the 
supreme court of New York be a sound exposition 
of the constitutional obligation to surrender. 

Nay more, it is not necessary t(5 call in aid that 
precedent and that opinion to the whole extent that 
they authorize. The conclusion that thfe fact 
charged in the affidavit is not a felony, or crime, 
within the meaning of the federal constitution, is 
untenable upon another ground. In a communica- 
tion of the 4th of October 1839, from the Lieuten- 
ant Governor of Virginia to the Governor of New 
York, this language is used — " Is it true that the 
offence committed hy Peter Johnson, Edward Smith 
and Isaac Gansey, is not recognized as criminal by 
the universal law of all civilized countries''! 
They are charged with feloniously stealing from 
John G. Collet/, a citizen of this state, property 
which could not have been worth less than six of 
seven hundred dollars. And I understand stealing 
to be recognized as crime by aU laws, human and 
Divine." In Governor Seward's reply of the 24th 
of October 1839, he says — " It is freely admitted 
that the argument would bo at an end, if it were as 
clear that one human being may be the property of 
another as it is that stealing is a crime." It micht 
not be going too far to say, that stealing property is 
recognized as crime by all laws, and that any state 
may make that property which she pleases. But 
here the question is not between Virginia, whose 
laws recognize slaves as property, and a forei<m 
state, whose laws recognize no such property. The 
question is very different. It is between Virginia, 
under whose laws slaves are property, and New 
York, who has made a compact with Virginia re- 
cognizing this very kind of property. New York 
has said to Virginia, that if she will come into the 
Union with her, a constitution shall be adopted for 
the government of the states, by which New York 
will agree that, no matter what laws or regulations 
New York may herself adopt to abolish slavery with- 
in her borders, persons held as slaves in Virginia, 
under her laws, who may escape into Neio York, 
shall not be discharged from slavery; but the right of 
property of the owners shall be respected in New 
York, and the slaves shall be delivered up on claim 
of the owners. Neio York has further agreed by 
the same constitution, that a person charged in Vir- 
ginia with a crime, who shall flee from justice and be 
found in New York, shall be delivered up to be re- 
moved to Virginia. After a union of the states has 
been formed, based upon the provisions contained in 
this constitution, a person charged in Virginia with * 
stealing property, flees from justice and is found in 
New York ; Virginia demands the fugitive, and New 



20 



Slavery and the ConstUution. 



V'.i refuses to deliver him up. New York, while 
so rcfosing .axlmits that if the person is charged 
with a crime he ought to be delivered up : and she 
admits that stealing property is a crime. But the 
ground of her refusal is that nothing was stolen 
except a person held as a slave, and that a person 
held as a slave is not property by the laws of New 
York. 
We trust that it is not yet come to this, that New 



York shall be told in vain that she herself has said, 
persons held in Virginia as slaves shall be recogni- 
^ed as property. We trust it is not too late to re- 
inind her, that she has so said in a Constitution 
wliich she agreed should be her supreme law, and 
which she declared the members of her state legis- 
lature, and all her executive and judicial officers, 
should be solemnly pledged to support. 



*•/■-- g^ 



U 3 






:t/.oO 






• ^'fr'^ 






v^\:..'. >. A*' ,^>aK'. "^^ .^^■.>v;:./'^^„ c'^" 



y\o'5 













'^-^'5' 



^S'>^ 






'^i^^' 







•<'^ 

^%<^, 



























^q. .-Tr,.*^© 












^^-nK 



^40^ 







^^-^K 




*^0« 






V ... 'Ht. 















^' .♦'-v. 















">. *' 








0, *.,••• A« ■>, 



'<f^^ *..o 













'•*i. ••- .*"^' ..... "'^. •* o* ....J 



^^-^K 



^40^ 



JvO-^i. 






?^..i.:ir. 




V . 







*' ^'>' ^^ 















♦ «0 



^"-n^. 




,.'«• '«'. 







»' «o 



'*bv' 

















40. 









6*. '^. 




















WERT 

6CX3KB1NOISC 

C,'dnl..lle Pi 

Much lo" 198; 






IP's " < 



^s.^^^ .^ 



